June 7, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1003
NANCY D. MURPHY,
Plaintiff, Appellant,
v.
FRANKLIN PIERCE LAW CENTER, ET AL.,
Defendants, Appellees.
ERRATA SHEET
The opinion of this court issued on May 31, 1995 is amended as
follows:
On cover sheet, change "Nancy D. Miller on brief pro se." to
"Nancy D. Murphy on brief pro se."
May 31, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1003
NANCY D. MURPHY,
Plaintiff, Appellant,
v.
FRANKLIN PIERCE LAW CENTER, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Nancy D. Murphy on brief pro se.
Russell F. Hilliard and Upton, Sanders & Smith on brief for
appellees.
Per Curiam. This is an appeal from the district
court's grant of summary judgment in favor of appellee
Franklin Pierce Law Center. The district court determined
that appellant Nancy Murphy's claim of handicap
discrimination in violation of 504 of the Rehabilitation
Act of 1973, 29 U.S.C. 794, failed as a matter of law.
I. BACKGROUND
Murphy suffers from diplopia, a genetic condition
in which weakness in the muscles of the eye causes double
vision and problems with focusing on printed matter. She has
had two surgeries (one necessitated by an automobile
accident) for this ailment. Murphy manages the diplopia by
limiting the amount of time spent reading and by engaging in
muscular exercises prescribed by Dr. John Sebestyen, her
treating physician. Nonetheless, when Murphy applied to the
Law Center in 1987, she was reading without impairment.
Murphy began experiencing academic difficulties
almost as soon as she entered the Law Center. At the end of
her first year, her G.P.A. was 1.88 -- below the minimum
G.P.A. of 2.0 set by the Law Center. Thus, Murphy came
within the jurisdiction of the Academic Standing Committee
("ASC"). At this time, Murphy indicated that her
difficulties were due to a thyroid condition and poor test-
taking skills; she did not mention the diplopia. For her
second year, the ASC required Murphy to maintain a G.P.A. of
2.0 and not to receive a grade below a C-.
Although Murphy met these requirements during the
fall semester, she again came before the ASC as the result of
receiving a D in Evidence during the spring semester.
Combined with D+ grades in two first-year courses, Murphy now
had more than nine credits below a C-. This was in violation
of the Law Center's general academic regulations. Murphy
submitted an analysis of her situation in which she cited,
for the first time, the diplopia as one of the causes of her
academic problems.
Specifically, Murphy stated that the diplopia
produced double-vision, eyestrain, pain and headaches -- all
of which interfered with reading efficiency. On the advice
of Dr. Sebestyen, Murphy did not read in the morning until
she had been awake for three hours, did not read or study for
more than three hours at a time, and slept when she had
trouble focusing. In this letter, Murphy requested that she
be allowed to take tests at three-day intervals so that her
eyestrain would be reduced. At a meeting later in June,
Murphy further asked the ASC to permit her to take oral
examinations.
Murphy also submitted to the ASC a letter from Dr.
Sebestyen, dated August 11, 1989. Based on a July 12 exam,
Dr. Sebestyen concluded that Murphy's convergence was poor
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and that her eye muscles were weak. He recommended that she
break up her reading and studying into "well-defined segments
of time such as two hours at a time, or three hours at the
most."
As for the fifth semester, the ASC allowed Murphy
to take only nine credits -- the usual minimum at the Law
Center is twelve. The terms of Murphy's probation were that
she obtain a 2.3 G.P.A., have no grades under a C- and not
have more than one course with a C- grade. Again, Murphy did
not appeal these terms. At the end of this semester,
however, Murphy's G.P.A. was 1.89; she had failed one course
and had received a D in another.
Murphy was dismissed from the Law Center by letter
dated February 12, 1990. The ASC stated that its decision
was based on (1) Murphy's failure to meet the terms of her
probation, and (2) her entire academic record which
demonstrated that she lacked the ability to complete the Law
Center's degree program. Murphy then pursued an appeal of
the decision of the ASC. The faculty upheld the dismissal
essentially finding that although the ASC had made mistakes,
they did not affect the question of Murphy's ability to
satisfy the academic requirements of the JD program. Murphy
then filed this action in the federal district court.
In granting the motion for summary judgment, the
district court concluded that Murphy had not presented any
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evidence contradicting the Law Center's position that she was
dismissed because she lacked the analytic skills necessary to
succeed in law school. Thus, the district court concluded,
she had not been dismissed "solely by reason of her
disability." The court next held that the Law Center was
entitled to summary judgment on the ground that Murphy was
not otherwise qualified to complete the JD program.
Specifically, the court found that Murphy had failed despite
the fact that she had received all of the accommodations
recommended by Dr. Sebestyen. This appeal ensued.
II. THE LAW
A. Summary Judgment.
Our review of an order granting summary judgment is
plenary. Wynne v. Tufts Univ. School of Medicine, 976 F.2d
791, 794 (1st Cir. 1992) ("Wynne II"), cert. denied, 113
S.Ct. 1845 (1993). Thus, "we must view the entire record in
the light most hospitable to the party opposing summary
judgment, indulging all reasonable inferences in that party's
favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990). If the record along with affidavits "show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law,"
we will uphold the grant of summary judgment. Fed. R. Civ.
P. 56(c); Wynne II, 976 F.2d at 794.
B. The Rehabilitation Act.
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Section 504 provides that "[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of
her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance . . . ." 29 U.S.C. 794. We have held that a
504 claimant must show that he or she (1) was dismissed from
a program which receives federal funds, (2) was disabled, (3)
but nonetheless was otherwise qualified, and (4) was
dismissed solely because of his or her disability. Cook v.
Rhode Island Dept. of Mental Health, Retardation, &
Hospitals, 10 F.3d 17, 22 (1st Cir. 1993). The parties do
not dispute that Murphy is disabled and that the Law Center
receives federal funds. The primary question is whether (1)
Murphy is an "otherwise qualified individual" (2) who was
dismissed from the Law Center solely because of her handicap.
The district court found Murphy's claim wanting on
both issues. Because we find that the district court
correctly determined that Murphy is not an "otherwise
qualified individual," we need not reach the second basis for
the ruling below.
To be otherwise qualified for retention, Murphy
must demonstrate that she was capable of satisfying the
academic and technical requirements set by the Law Center
with the help of reasonable accommodations. See McGregor v.
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Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 855
(5th Cir. 1993), cert. denied, 114 S.Ct. 1103 (1994). Thus,
we look to see whether the Law Center either provided
reasonable accommodation for Murphy's diplopia or reached a
rational conclusion that accommodating Murphy would unduly
interfere with its academic program. See Wynne II, 976 F.2d
at 793. Where, as here, the facts regarding what
accommodations were made are not in dispute, this question is
a legal one. Wynne v. Tufts Univ. School of Medicine, 932
F.2d 19, 26 (1st Cir. 1991) (en banc) (citation omitted).
III. DISCUSSION
Murphy argues that the Law Center did not engage in
the required analysis concerning what reasonable alternatives
were available to it for the purpose of accommodating her
diplopia. She points to the faculty's decision affirming her
dismissal in which the involved faculty members note that the
ASC never considered Murphy to be handicapped, never
investigated the information contained in Murphy's letter of
June 9, 1989, never consulted Dr. Sebestyen regarding the
extent of the diplopia despite his letter of August 11, 1989,
and never considered the effects of the diplopia in setting
the probationary terms for Murphy's fifth semester. Murphy
also claims that the Law Center, in fact, failed to provide
any of the accommodations requested by her or recommended by
Dr. Sebestyen.
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The record reveals that the following adjustments
were made for Murphy's fifth semester -- the only time period
to which 504's standards apply.1 First, the ASC permitted
Murphy to carry a reduced credit load. Of the four courses
Murphy took, one was a "mini-course" in which the final
examination was scheduled prior to the regular exam period.
The grade in another course was based solely on written work.
This left two courses in which Murphy was required to sit for
standard examinations. Finally, Murphy requested, and
received, an extra hour in which to complete her
examinations.
We find that these measures satisfied the Law
Center's obligation to provide reasonable accommodations to
Murphy. Besides resting and being awake for three hours
before reading, the only recommendation made by Dr. Sebestyen
relevant to test-taking was that Murphy read in blocks of
time no greater than two to three hours and that her tests be
scheduled at three-day intervals. We note initially that
there is no evidence that Murphy's fifth semester
examinations were arranged in a manner contrary to Murphy's
1. Because Murphy never informed the Law Center that the
diplopia was interfering with her ability to perform until
after the end of her fourth semester, it is not chargeable
with notice of this handicap before then. See Wynne II, 976
F.2d at 795 (to be liable under 504, an academic
institution must have, or reasonably be expected to have,
knowledge of a student's disability) (citation omitted).
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proposed schedule. Thus, it appears that she had sufficient
time between her examinations to permit her to rest her eyes.
As for the extra hour for the completion of her
examinations, Murphy complains that the only effect of this
accommodation was to lengthen the three- to four-hour
duration of finals to four to five hours. Thus, she
concludes, she was forced to exceed the limits placed on her
by Dr. Sebestyen. However, Dr. Sebestyen never indicated
that Murphy required more than the usual time for completing
her tests. Thus, instead of using the extra hour to complete
the examinations, we perceive no reason why Murphy could not
have taken the additional hour to rest her eyes or to sleep,
thereby following Dr. Sebestyen's specific advice.
Murphy also emphasizes that she never was given
oral examinations as she had asked. According to Murphy, in
response to this request and in an apparent effort to
understand the effects of Murphy's diplopia, the ASC arranged
for a second Evidence examination to be administered orally.
Due to a mix-up, however, the test was in written form when
Murphy took it. When the ASC set the terms for the fifth
semester, it nonetheless was under the mistaken impression
that the exam had, in fact, been oral.
We do not find the want of oral examinations
probative of a failure reasonably to accommodate Murphy's
diplopia. Simply, there is no evidence that Murphy had
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difficulty reading for two or three hour time periods or that
her comprehension was reduced by having to read, as opposed
to hearing, her examinations. Dr. Sebestyen never
recommended oral examinations or suggested that Murphy
refrain from reading altogether. In short, Murphy has not
shown that her performance would have improved through oral
exams; that is, she has not shown that she would be otherwise
qualified if tested orally.
Murphy further argues that by requiring her to
maintain a 2.3 grade point average in the fifth semester, the
ASC had demanded more of her than of non-probationary
students (who needed to maintain only a 2.0 average). In
this regard, Murphy points out that her overall average at
the end of the fifth semester was 2.05 -- above the Law
Center's minimum requirement. The faculty noted in its
decision upholding Murphy's dismissal that students on
probation were often required to have grade point averages
higher than the minimum.
Murphy did not submit any evidence showing that she
was singled out or that the ASC demanded the higher G.P.A.
for discriminatory reasons. Merely requiring special
probationary terms is not sufficient to demonstrate that the
Law Center failed adequately to accommodate Murphy. See
McGregor, 3 F.3d at 858 n.9, 860 (where disabled law
student's G.P.A. was above the minimum imposed on non-
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probationary students, but below the G.P.A. set forth in the
terms of his probation, 504 did not require the law school
to let him proceed to his next year). In any event, Murphy
still failed to comply with the generally applied academic
provision that a student have not more than nine credits
below a C-.
Murphy's most emphatic argument is that the
district court erred in assigning the burdens of production
and persuasion that the parties must meet in a Rehabilitation
Act claim. She correctly notes that the circuits are divided
on this question. One camp holds that the plaintiff must
make a prima facie showing that she would be qualified to
participate in the program if reasonable accommodations were
made. The burden then shifts to the defendant to produce
evidence that reasonable accommodations were made and/or that
the plaintiff's requested accommodations would unduly
interfere with the quality or integrity of the program. At
that point, the burden shifts back to the plaintiff to rebut
that evidence or show that the institution's actions were a
pretext for discrimination. See, e.g., Teahan v. Metro-North
Commuter R. Co., 951 F.2d 511, 515-16 (2d Cir. 1991).
Another camp places on the defense the burden of persuasion,
rather than production. See, e.g., Pushkin v. University of
Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981). This circuit
has never squarely addressed the issue.
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Murphy argues that the district court wrongly
applied the production standard rather than the persuasion
standard. But under any standard she must, at the very
least, make a sufficient prima facie case that she would be
qualified with the aid of oral examinations, the only
requested accommodation that the school did not provide. As
we noted earlier, she did not make that showing. Murphy's
tests were administered at intervals of several days, and
they did not require her to read for more than three hours
without a break. There is no reason to think that Murphy's
performance would improve if she were not required to take
written examinations at all.
IV. CONCLUSION
The fact that the ASC might not have specifically
considered the effects of Murphy's diplopia in determining
what accommodations to provide does not mean that the
accommodations she actually received were not "reasonable"
within the meaning of 504. We therefore conclude that, as
a matter of law, Murphy was not otherwise qualified for
retention as a student at the Law Center. That is, even with
the accommodations provided by the ASC, she was unable to
meet both the Law Center's degree requirements and the terms
of her probation.
The judgment of the district court is affirmed.
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Murphy v. Franklin Pierce
Combined Opinion